<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
February 4, 1998 (January 27, 1998)
Wal-Mart Stores, Inc.
---------------------
(Exact name of registrant as specified in its charter)
Delaware 001-06991 71-0415188
- ---------------- --------- ----------
(STATE OR OTHER (Commission File Number) (IRS EMPLOYER
JURISDICTION OF IDENTIFICATION NO.)
INCORPORATION)
702 S.W. 8th Street
Bentonville, Arkansas 72716
----------------------------
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code:
(501) 273-4000
<PAGE>
ITEM 5. OTHER EVENTS.
On January 27, 1998, Wal-Mart Stores, Inc. completed a public offering of
$500,000,000 aggregate principal amount of Remarketed Put Bonds due February 1,
2010 (the "Bonds"). The purpose of this Current Report on Form 8-K is to file
with the Securities and Exchange Commission the form of the Bonds and the
Calculation Agency Agreement and certain other documents related to this
offering.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
4.1 Form of Remarketed Put Bonds due February 1, 2010.
5.1 Opinion of Hughes & Luce, L.L.P.
10.1 Calculation Agency Agreement between Wal-Mart Stores, Inc. and
Goldman, Sachs & Co. dated January 27, 1998.
23.1 Consent of Hughes & Luce, L.L.P. (included in Exhibit 5.1)
1
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: February 4, 1998 WAL-MART STORES, INC.
By: /s/ John B. Menzer
--------------------------------------
John B. Menzer,
Executive Vice President and
Chief Financial Officer
2
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 Form of Remarketed Put Bonds due February 1, 2010.
5.1 Opinion of Hughes & Luce, L.L.P.
10.1 Calculation Agency Agreement between Wal-Mart Stores, Inc. and
Goldman, Sachs & Co. dated January 27, 1998.
23.1 Consent of Hughes & Luce, L.L.P. (included in Exhibit 5.1)
</TABLE>
<PAGE>
Exhibit 4.1
S&C Draft of January 26, 1998
[FORM OF FACE OF BOND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. _____ CUSIP: 931142BA0
$_______________
WAL-MART STORES, INC.
Remarketed Put Bonds due February 1, 2010
WAL-MART STORES, INC., a corporation organized and existing under the
laws of the State of Delaware (hereinafter called the "Company," which term
shall include any successor entity), for value received, hereby promises to pay
to [CEDE & CO.] or registered assigns, the principal sum of
_____________________ DOLLARS on February 1, 2010 (the "Final Maturity") at any
office or agency maintained for the purpose in the Borough of Manhattan, The
City of New York, New York or the City of Chicago, Illinois, which shall
initially be the corporate trust office of The First National Bank of Chicago,
the Trustee under the Indenture referred to on the reverse hereof, at One North
State Street, 9th floor, Chicago, Illinois 60602, in such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts, and to pay to the registered holder hereof,
as hereinafter provided, interest on said principal sum at the rate described
below, in like coin or currency, from the
<PAGE>
February 1 or the August 1 next preceding the date hereof to which interest has
been paid or duly provided for (unless the date hereof is a February 1 or August
1 to which interest has been paid, in which case from the date hereof, or unless
the date hereof is on or prior to the first payment of interest, in which case
from January 27, 1998; provided, however, that if the Company shall default in
payment of the interest due on such February 1 or August 1, then from the next
preceding February 1 or August 1 to which interest has been paid or, if no
interest has been paid on the Bonds, from January 27, 1998) semi-annually on
February 1 and August 1 in each year, until payment of said principal sum has
been made or duly provided for. The interest so payable on any February 1 or
August 1 shall, subject to certain exceptions provided in the Indenture, be paid
to the person in whose name this Bond is registered at the close of business on
the next preceding January 15 or July 15, as the case may be (each, an "Interest
Payment Record Date"). Payments of interest shall be made at any office or
agency referred to above, provided that, at the option of the Company, payments
of interest may be made by check mailed to the registered address of the persons
entitled thereto.
From and including January 27, 1998 to but excluding February 1, 2000,
interest shall accrue on the principal sum of this Bond at an annual rate equal
to 5.65%. On February 1, 2000 and on every second February 1 thereafter until
and including February 1, 2008 (each such biennial date, a "Reset Date"), the
interest rate on this Bond shall be reset so as to equal a fixed rate determined
as described on the reverse hereof, unless the Company is obligated to
repurchase this Bond on such date (or has previously done so) pursuant to the
Put Option referred to on the reverse hereof. Notwithstanding the foregoing,
reset shall be subject to the occurrence of a Market Disruption Event or a
Failed Remarketing as described on the reverse hereof.
This Bond has initially been issued in the form of a Global Security
(as defined on the reverse hereof), and the Company has initially designated The
Depository Trust Company ("DTC," which term shall include any successor) as the
Depositary for this Bond. For as long as this Bond or any portion hereof is
issued in such form, and notwithstanding the foregoing, all payments of
interest, principal and other amounts in respect of this Bond or such
-2-
<PAGE>
portion (including payments pursuant to the Call Option and Put Option referred
to on the reverse hereof) shall be made to the Depositary or its nominee in
accordance with its Applicable Procedures (as defined on the reverse hereof), in
the coin or currency specified above and as further provided on the reverse
hereof.
Notwithstanding the foregoing, if any payment of interest, principal
or other amount to be made in respect of this Bond (including any payment
pursuant to an exercise of the Call Option or Put Option) would otherwise be due
on a day that is not a business day, such payment may be made on the next
succeeding day that is a business day, with the same effect as if such payment
were made on the due date.
This Bond is continued on the reverse hereof and the additional
provisions there set forth shall for all purposes have the same effect as if set
forth at this place. Such provisions include, inter alia, the Call Option and
Put Option, interest rate reset mechanism and the definitions of certain terms
used on the face hereof.
This Bond shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture.
-3-
<PAGE>
IN WITNESS WHEREOF, WAL-MART STORES, INC. has caused this Instrument
to be executed in its corporate name by the signature of its Chairman of the
Board or its President, or a Vice Chairman or a Vice President of the Company,
manually or in facsimile, and a facsimile of its corporate seal to be imprinted
hereon and attested by the signature of its Secretary or one of its Assistant
Secretaries or its Treasurer or one of its Assistant Treasurers, manually or in
facsimile.
Dated: January 27, 1998
[CORPORATE SEAL] WAL-MART STORES, INC.
By: __________________________________
Name:
Title:
ATTEST:
By: ______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By: ______________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF BOND]
WAL-MART STORES, INC.
Remarketed Put Bonds due February 1, 2010
1. Indenture. (a) This bond is one of a duly authorized issue of
---------
debentures, notes or other evidence of indebtedness of the Company (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of April 1, 1991, as
amended (the "Indenture", which term has the meaning set forth in such
instrument), duly executed and delivered by the Company to The First National
Bank of Chicago, as Trustee (the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture reference is hereby made for a
description of the rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Securities.
(b) The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This bond is one of a series of the Securities designated
as the Remarketed Put Bonds due February 1, 2010 of the Company, limited in
aggregate principal amount to $500,000,000 (the "Bonds"). The Bonds constitute
a separate series of Securities under the Indenture.
(c) The provisions of this Bond (including those relating to the Call
Option and Put Option), together with the provisions of the Indenture, shall
govern the rights, obligations, duties and immunities of the holders hereof, the
Company and the Trustee with respect to this Bond, provided that, if any
provision of this Bond necessarily conflicts with any provision of the
Indenture, the provision of this Bond shall be controlling to the fullest extent
permitted under the Indenture.
(d) Terms used and not defined herein that are defined in the
Indenture shall have the respective meanings assigned thereto in the Indenture.
Unless the context
-5-
<PAGE>
requires otherwise, terms defined herein include the plural as well as the
singular and vice-versa, and the words "herein" and "hereof", and words of
similar import, refer to this Bond as a whole and not to any particular
paragraph or other subdivision.
2. Call Option. (a) Goldman, Sachs & Co., a New York limited
-----------
partnership ("Goldman, Sachs & Co.", which term shall include any successor),
shall have the right to purchase, on each Reset Date, all of the Bonds
outstanding on such Reset Date (in whole and not in part), including this Bond,
from the registered holders thereof on such Reset Date (such right, the "Call
Option"), in each case at a price equal to 100% of the principal amount of the
Bonds purchased (the "Face Value") and subject to Goldman, Sachs & Co. giving
notice of its intention to purchase the outstanding Bonds as described below (a
"Call Notice"). Whether or not the Call Option is exercised with respect to any
Reset Date, the Company shall remain obligated to pay all accrued and unpaid
interest on this Bond, and interest that becomes payable on this Bond on the
applicable (or any prior) Reset Date shall be payable to the registered holder
of this Bond on the corresponding Interest Payment Record Date (as defined
below), as provided herein and in the Indenture.
(b) To exercise the Call Option with respect to any Reset Date,
Goldman, Sachs & Co. must give a Call Notice to the registered holder of this
Bond no later than the 13th Market Day prior to such Reset Date, in the manner
described in paragraph 9 below. Subject to paragraph 5(a) below, in the event a
Call Notice is duly given with respect to any Reset Date, the registered holder
of this Bond on such Reset Date shall be obligated to sell this Bond to Goldman,
Sachs & Co., and Goldman, Sachs & Co. shall be obligated to purchase this Bond
from such holder, at the Face Value on such Reset Date. Each such sale and
purchase shall be effected through the facilities of the Depositary, with the
registered holder being deemed to have automatically tendered this Bond for sale
to Goldman, Sachs & Co. on the applicable Reset Date in accordance with the
Depositary's Applicable Procedures as provided in paragraph 5 below. The
registered holder's automatic tender of this Bond on any Reset Date shall be
subject to receipt of payment of the Face Value of this Bond as provided in
paragraph 5(a) below. Notwithstanding any exercise of the Call Option with
respect to this Bond, this Bond will remain outstanding until it
-6-
<PAGE>
otherwise ceases to be outstanding pursuant to the Indenture. As used herein,
"Market Day" means a business day other than a day on which dealings in the U.S.
Treasury bond market are generally not being conducted.
(c) If the Call Option is exercised with respect to a particular
Reset Date, this Bond shall be subject to purchase by Goldman, Sachs & Co. on
such Reset Date as provided herein and subject to paragraph 5(a) below.
3. Put Option. (a) If Goldman, Sachs & Co. does not exercise the
----------
Call Option with respect to a particular Reset Date, the registered holder of
this Bond on such Reset Date shall have the right to require the Company to
repurchase this Bond (in whole and not in part) from such holder on such Reset
Date (such right, the holder's "Put Option") at a price equal to 100% of the
principal amount of this Bond repurchased (the "Put Price"), in the
circumstances described in the next paragraph. In the event the Put Option is
exercised, the Put Price shall be payable by the Company to the registered
holder of this Bond on the applicable Reset Date, whereas the accrued and unpaid
interest on this Bond that becomes payable on the applicable (or any prior)
Reset Date shall be payable by the Company to the registered holder of this Bond
on the corresponding Interest Payment Record Date, as provided herein and in the
Indenture. If for any reason payment of the Put Price is not made when due on
this Bond, the accrued interest from such Reset Date to the date such payment is
made would be payable by the Company as part of the Put Price for this Bond, to
the person entitled to receive the Put Price.
(b) On each Reset Date, the registered holder of this Bond on such
Reset Date shall be deemed to have exercised its Put Option automatically,
without any action on its part, for the full principal amount of this Bond held
of record by such holder on such Reset Date unless either (x) Goldman, Sachs &
Co. has duly given a Call Notice with respect to such Reset Date or (y) if
Goldman, Sachs & Co. does not exercise the Call Option with respect to such
Reset Date, (i) no later than 10:00 A.M. (New York City time) on the tenth
Market Day prior to such Reset Date, the registered holder of this Bond at the
time gives notice to the Trustee that such holder elects not to sell this Bond
to the Company on such Reset Date (a "Hold Notice") and (ii) such notice is
effective (an "Effective Hold Notice") under the 10% Requirement (as defined
below). A Hold Notice must
-7-
<PAGE>
be given in the manner described in paragraph 9 below. Consequently, with
respect to this Bond on any Reset Date, if a Call Notice is not duly given by
Goldman, Sachs & Co. and an Effective Hold Notice is not duly given by the
applicable holder as provided above, the Company shall be obligated to
repurchase this Bond from the registered holder on such Reset Date, and the
registered holder of this Bond on the Reset Date shall be obligated to sell this
Bond to the Company, at the Put Price on such Reset Date. Any such sale and
purchase shall be effected through the facilities of the Depositary, with the
registered holder of this Bond on the applicable Reset Date being deemed (in the
absence of an Effective Hold Notice) to have automatically tendered this Bond in
whole for sale to the Company on the applicable Reset Date, all in accordance
with the Depositary's Applicable Procedures as provided in paragraph 5 below.
Notwithstanding any exercise of the Put Option with respect to this Bond, this
Bond shall remain outstanding until it otherwise ceases to be outstanding
pursuant to the Indenture.
(c) Notwithstanding the foregoing, no Hold Notice for this Bond shall
be effective with respect to any Reset Date unless Hold Notices are duly given
with respect to such Reset Date by the holders of record of at least 10% in
aggregate principal amount of all Bonds outstanding on the 13th Market Day prior
to such Reset Date. The provision described in this paragraph is called the
"10% Requirement". If, with respect to any Reset Date, a Hold Notice is duly
given for this Bond but the 10% Requirement is not satisfied, the Trustee shall
give written notice of that fact (a "10% Requirement Notice") to the registered
holder of this Bond and the Company not later than the close of business on the
tenth Market Day before such Reset Date, in the manner described in paragraph 9
below.
(d) Notwithstanding the foregoing, the Put Option shall be deemed to
be automatically exercised with respect to any Reset Date if Goldman, Sachs &
Co. exercises the Call Option with respect to such Reset Date but either (i) a
Market Disruption Event or Failed Remarketing occurs, as provided in paragraph 4
below, or (ii) Goldman, Sachs & Co. fails to pay the Face Value on the Reset
Date, as provided in paragraph 5(a) below.
4. Reset of Interest Rate. The interest rate on this Bond shall be
----------------------
reset on each Reset Date, unless the
-8-
<PAGE>
Company is obligated to purchase this Bond on such date (or has previously done
so) pursuant to the Put Option. Notwithstanding the foregoing, reset of the
interest rate shall be subject to the occurrence of a Market Disruption Event or
a Failed Remarketing as described below.
Subject to its right to terminate the appointment of any such agent,
the Company shall take such action as is necessary to ensure that there shall at
all relevant times be a qualified financial institution appointed and acting as
its agent for the purpose of performing the actions contemplated hereby to be
performed by the Calculation Agent (such agent, including any successor agent,
the "Calculation Agent"). The Company has initially appointed Goldman, Sachs &
Co. as Calculation Agent. If the interest rate is to be reset on any Reset
Date, the Calculation Agent shall effect the reset as follows:
On the ninth Market Day prior to the applicable Reset Date (a
"Calculation Date"), the Calculation Agent shall undertake the following actions
to calculate a fixed rate at which interest will accrue on the Bonds from and
including such Reset Date to but excluding the next Reset Date (or, if there is
no subsequent Reset Date, the Final Maturity) (each such period, a "Reset
Period"). In paragraphs (a) through (c) below, all references to specific hours
are references to prevailing New York City time, and each notice shall be given
telephonically and shall be confirmed as soon as possible by facsimile to each
of the Calculation Agent and the Company. The times set forth below are
guidelines for action, and the Calculation Agent shall use reasonable efforts to
adhere to these times.
(a) At 11:00 A.M., the Calculation Agent shall select three financial
institutions (one of which shall be Goldman, Sachs & Co. if it so
requests) that deal in the Company's debt securities and have agreed
to participate as reference dealers in accordance with the terms
described below (the "Reference Dealers"). If Goldman, Sachs & Co.
has exercised the Call Option with respect to the applicable Reset
Date and so requests, each Reference Dealer must include in its
participation agreement a written commitment (satisfactory to Goldman,
Sachs & Co.) that, if it is selected as the Final Dealer (as defined
below), it shall purchase from Goldman, Sachs & Co. on the
-9-
<PAGE>
Calculation Date for settlement on such Reset Date and at the Final
Offer Price (as defined below), all the Bonds that Goldman, Sachs &
Co. purchases pursuant to the Call Option and tenders for resale to
the Final Dealer on such Reset Date. For each Reference Dealer, the
Calculation Agent shall request the name of and telephone and
facsimile numbers for one individual to represent such Reference
Dealer.
(b) At 12:00 P.M., the Calculation Agent shall:
(i) determine (or obtain from Goldman, Sachs & Co., if Goldman,
Sachs & Co. has exercised the Call Option with respect to the
applicable Reset Date) the approximate two-year U.S. Treasury
bond yield at or about such time, which shall be expressed as a
percentage (the "Designated Treasury Yield") and shall be based
on the then-current, two-year U.S. Treasury bond (the
"Designated Treasury Bond");
(ii) calculate and provide to the Reference Dealers, on a
preliminary basis, a hypothetical price at which the Bonds
might be offered for sale to a Reference Dealer on the
applicable Reset Date (the "Offer Price"). The Offer Price
shall be expressed as a percentage of the principal amount of
the Bonds and shall equal 100% plus the Margin (as defined
below) if the Treasury Rate Difference (as defined below) is
positive, or 100% minus the Margin if the Treasury Rate
Difference is negative. The Margin shall also be expressed as a
percentage of the principal amount of the Bonds and shall equal
the present value of the absolute value of the Treasury Rate
Difference applied to four semi-annual periods (i.e., two
years), discounted at the Designated Treasury Yield divided by
two. The "Treasury Rate Difference" means the percentage (which
may be positive or negative) equal to (x) 5.283% (the "Initial
Treasury Yield") minus (y) the Designated Treasury Yield; and
-10-
<PAGE>
(iii) request each Reference Dealer to provide to the Calculation
Agent, when notified of the Final Offer Price as described in
paragraph (c) below, a firm bid, expressed as a percentage
representing an interest rate spread over the Designated
Treasury Yield (the "Spread"), at which such Reference Dealer
would be willing to purchase on such Calculation Date for
settlement on the applicable Reset Date, at the Final Offer
Price, all of the Bonds then outstanding (assuming for this
purpose that the Bonds will remain subject to the Call Option
and, if the Call Option is not exercised by Goldman, Sachs &
Co., subject to the potential exercise of the Put Option every
two years, and will mature on the Final Maturity, all as
described herein). Each such firm bid must be given on an "all-
in" basis and must remain open for at least 30 minutes after it
is given.
(c) At 12:30 P.M., the Calculation Agent shall determine (or obtain from
Goldman, Sachs & Co., if Goldman, Sachs & Co. has exercised the Call
Option) the Designated Treasury Yield on a final basis, and calculate
and provide to the Reference Dealers the Offer Price on a final basis
(the "Final Offer Price") and request each Reference Dealer to submit
its bid immediately as described in clause (b)(iii) above. If the
Calculation Agent receives bids from at least two of the Reference
Dealers, the following shall occur:
(i) the Reference Dealer providing the bid representing the lowest
all-in Spread (the "Final Spread") shall be the "Final Dealer";
(ii) if Goldman, Sachs & Co. has exercised the Call Option with
respect to the applicable Reset Date, the Final Dealer shall
purchase from Goldman, Sachs & Co. at the Final Offer Price,
for settlement on such Reset Date, all the Bonds that Goldman,
Sachs & Co. purchases pursuant to the Call Option and tenders
for resale to the Final Dealer
-11-
<PAGE>
on such Reset Date (assuming that the interest rate on the
Bonds will be reset so as to equal the Adjusted Rate (as
defined below) during the applicable Reset Period); the Final
Dealer shall not be obligated to purchase any Bonds if Goldman,
Sachs & Co. has not exercised the Call Option;
(iii) the Calculation Agent shall calculate and provide to the
Company the "Adjusted Rate", which shall be the semi-annual,
bond-equivalent, fixed interest rate on the Bonds required to
produce, during the applicable Reset Period, a semi-annual,
bond-equivalent yield on the Bonds that equals the sum of the
Final Spread plus the final Designated Treasury Yield, assuming
that the Bonds are purchased on the applicable Reset Date at
the Final Offer Price and shall be repurchased by the Company
at par two years later; and
(iv) the interest rate on the Bonds shall be adjusted so as to equal
the Adjusted Rate, effective from and including the applicable
Reset Date to but excluding the next Reset Date (or, if there
is no subsequent Reset Date, the Final Maturity). If, with
respect to the applicable Reset Date, Goldman, Sachs & Co. has
not exercised the Call Option and an Effective Hold Notice is
given for this Bond, the Company shall promptly give written
notice of the Adjusted Rate to the registered holder.
All determinations regarding the Designated Treasury Yield and the Designated
Treasury Bond with respect to any Reset Date as described in clause (b)(i) and
the first sentence of paragraph (c) above shall be made by Goldman, Sachs & Co.
if another party is acting as the Calculation Agent, unless Goldman, Sachs & Co.
has elected not to exercise the Call Option with respect to such Reset Date, in
which case such determinations will be made as necessary by the Calculation
Agent.
If the Calculation Agent determines that, on the applicable
Calculation Date, (x) a Market Disruption Event
-12-
<PAGE>
(as defined below) has occurred or is continuing or (y) fewer than two Reference
Dealers have provided firm bids in a timely manner pursuant to participation
agreements satisfactory to Goldman Sachs & Co. substantially as described above
(a "Failed Remarketing"), the steps contemplated above shall be taken on the
next Market Day on which the Calculation Agent determines that no Market
Disruption Event has occurred or is continuing and at least two Reference
Dealers have provided bids pursuant to participation agreements satisfactory to
Goldman, Sachs & Co. substantially as described above. If the Calculation Agent
determines that a Market Disruption Event and/or a Failed Remarketing has
occurred or is continuing for at least four consecutive Market Days starting on
the applicable Calculation Date, then Goldman, Sachs & Co. shall be deemed not
to have exercised the Call Option and the Company shall repurchase this Bond on
the applicable Reset Date at the Put Price from the registered holder hereof on
such Reset Date, all as if the Put Option on this Bond had been exercised with
respect to such Reset Date. In these circumstances, the registered holder may
not continue to hold this Bond by giving an Effective Hold Notice. The
Calculation Agent shall notify the Company of such determination promptly after
the close of business on such fourth Market Day. The Company shall give notice
to the registered holder that this Bond will be repurchased by the Company on
the applicable Reset Date at the Put Price, from the registered holder on such
Reset Date, such notice to be given no later than such fifth Market Day prior to
the Reset Date in the manner described below.
Notwithstanding the foregoing, if at any time relevant to a particular
Reset Date, Goldman, Sachs & Co. is not acting as Calculation Agent, then, with
respect to such Reset Date, the determinations and notice to the Company
described in the preceding paragraph shall be made and given by Goldman, Sachs &
Co., unless Goldman, Sachs & Co. does not exercise the Call Option with respect
to such Reset Date, in which case such determinations and notice will be made
and given by the Calculation Agent.
"Market Disruption Event" means any of the following: (i) a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange or the establishment of minimum prices on such exchange; (ii) a general
moratorium on commercial banking activities declared by either federal or New
York State
-13-
<PAGE>
authorities; (iii) any material adverse change in the existing financial,
political or economic conditions in the United States of America; (iv) an
outbreak or escalation of hostilities involving the United States of America or
the declaration of a national emergency or war by the United States of America;
or (v) any material disruption of the U.S. government securities market, U.S.
corporate bond market and/or U.S. federal wire system.
All determinations regarding Market Disruption Events and Failed
Remarketings, including whether or not any such event has occurred or is
continuing, shall be made by the Calculation Agent (or Goldman, Sachs & Co., if
applicable as provided above) in its sole discretion.
All percentages resulting from any calculation with respect to the
Bonds will be rounded upwards, if necessary, to the nearest one-thousandth of a
percentage point (e.g., 5.6531% (or 0.056531) being rounded to 5.654 (or
0.05654)), and all U.S. dollar amounts will be rounded to the nearest cent (with
one-half cent being rounded upwards).
All determinations made by the Calculation Agent (or Goldman, Sachs &
Co.) regarding the matters described herein shall be final, conclusive and
binding on all concerned absent manifest error. No determination made by the
Calculation Agent (or Goldman, Sachs & Co.) regarding the matters described
herein shall give rise to any liability on the part of the Calculation Agent,
Goldman, Sachs & Co., the Trustee or the Company.
5. Settlement on Exercise of Call Option or Put Option. For as long
---------------------------------------------------
(but only for as long) as this Bond or any portion hereof is issued in the form
of a Global Security, the provisions of paragraph 5(a) through 5(d) below,
inclusive, shall apply with respect to this Bond or such portion, as the case
may be.
(a) If the Call Option is exercised, then, on the applicable Reset
Date, all beneficial interests in this Bond held by or through Agent Members (as
defined below) shall be transferred to a Depositary account designated by
Goldman, Sachs & Co. The transfers shall be made automatically, without any
action on the part of any holder or beneficial owner, by book entry through the
facilities of the Depositary. Goldman, Sachs & Co. shall be obligated to make
-14-
<PAGE>
payment of the Face Value of this Bond to the Depositary or its nominee, for
credit to the accounts of the Agent Members by or through which beneficial
interests in this Bond are held, by the close of business on the applicable
Reset Date. Each such transfer shall be made against the corresponding payment,
and each such payment shall be made against the corresponding transfer, in
accordance with the Depositary's Applicable Procedures. In all cases, the
Company shall remain obligated to make payment of accrued and unpaid interest on
this Bond, with interest payable on the applicable (or any prior) Reset Date
being payable to the registered holder on the corresponding Interest Payment
Record Date.
If Goldman, Sachs & Co. fails to pay the Face Value of this Bond on
the applicable Reset Date, the Call Option shall be deemed not to have been
exercised and the Put Option will be deemed to have been exercised on this Bond
with respect to such Reset Date. In these circumstances, the registered holder
on the applicable Reset Date may not continue to hold this Bond by giving an
Effective Hold Notice, and the Company will be obligated to pay, not later than
two business days following the applicable Reset Date, the Put Price for this
Bond (including accrued interest from the Reset Date to the date payment is
made), with settlement otherwise occurring as described in the next paragraph.
As used herein, (i) "Agent Member" means, at any time, any person who is a
member of, or participant in, the Depositary at such time and (ii) "Applicable
Procedures" means, with respect to any payment, transfer or other transaction to
be effected with respect to a Global Security, through the facilities of the
Depositary at any time, the policies and procedures of the Depositary applicable
to such transaction, as in effect at such time.
(b) If the Put Option is exercised as to this Bond, then, on the
applicable Reset Date, all beneficial interests in this Bond held by or through
Agent Members shall be transferred to a Depositary account designated by the
Company. The transfers shall be made automatically, without any action on the
part of any holder or beneficial owner, by book entry through the facilities of
the Depositary. The Company shall be obligated to make payment of the Put Price
of this Bond to the Depositary or its nominee, for credit to the accounts of the
Agent Members by
-15-
<PAGE>
or through which beneficial interests in this Bond are held, by the close of
business on the applicable Reset Date (or, if the Put Option is deemed to have
been exercised as contemplated by the second paragraph of paragraph 5(a) above,
by the close of business on the second business day following the applicable
Reset Date). Each such transfer shall be made against the corresponding payment,
and each such payment shall be made against the corresponding transfer, in
accordance with the Depositary's Applicable Procedures. If the Company fails to
pay the Put Price for this Bond on the applicable Reset Date, accrued interest
from such Reset Date to the date the payment is made shall be payable as part of
such Put Price, in the same manner and for credit to the same accounts as such
Put Price. Whether or not purchased pursuant to the Put Option, the Company
shall remain obligated to make payment of accrued and unpaid interest on this
Bond, with interest payable on the applicable (or any prior) Reset Date being
payable to the registered holder on the corresponding Interest Payment Record
Date as provided herein and in the Indenture.
(c) The transactions described in paragraphs 5(a) and 5(b) above
shall be executed on the applicable Reset Date through the facilities of the
Depositary in accordance with its Applicable Procedures, and the accounts of the
respective Agent Members shall be debited and credited and beneficial interests
in this Bond shall be delivered by book entry as necessary to effect the
purchases and sales provided for above. Unless the Depositary's Applicable
Procedures require otherwise, such transactions shall settle, and all other
payments in respect of the Bonds shall be made, in immediately available funds
through DTC's Same-Day Funds Settlement System. Notwithstanding any provision
hereof or of the Indenture, neither the Company, the Trustee nor Goldman, Sachs
& Co., nor any agent of any such person, shall have any responsibility with
respect to the Applicable Procedures or for any payments, transfers or other
transactions, or any notices or other communications, among the Depositary, its
Agent Members, any other direct or indirect participants therein and any
beneficial owners of a Global Security. For all purposes of this Bond and the
Indenture, any payment or notice to be made or given with respect to this Bond
by the Company or Goldman, Sachs & Co. shall be deemed made or given when made
or given to the Depositary or its nominee, in accordance with its Applicable
Procedures.
-16-
<PAGE>
(d) The settlement procedures described in paragraphs 5(a), 5(b) and
5(c) above may be modified, notwithstanding any contrary terms of the Bonds or
the Indenture, to the extent required by the Depositary. In addition,
notwithstanding any contrary terms of the Bonds or the Indenture, the Company
may modify the settlement procedures described in paragraphs 5(a), 5(b) and 5(c)
above in order to facilitate the settlement process.
(e) If any Bonds are issued in non-book-entry form, the Company shall
modify the provisions of paragraphs 5(a) through 5(d) above, inclusive, so as to
ensure that Reset Date settlements of transactions in such Bonds are effected in
as comparable a manner as practical, provided that such modified procedures
shall not adversely affect the interests of the holders of the outstanding Bonds
in any material respect.
6. Default, Waiver, Amendment and Enforcement. (a) In case an Event
------------------------------------------
of Default, as defined in the Indenture, with respect to the Bonds shall have
occurred and be continuing, the principal of all outstanding Bonds may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture provides that in the event of such a declaration, its consequences
may be rescinded and annulled (and the related default and its consequences may
be waived) with respect to all the Bonds by the holders of a majority in
aggregate principal amount of all the Bonds then outstanding, voting as a
separate class (or, in some cases, of all the Securities then outstanding,
voting as a single class), in accordance with the provisions of, and in the
circumstances provided by, the Indenture. It is also provided in the Indenture
that the holders of a majority in aggregate principal amount of the Bonds at the
time outstanding may, on behalf of the holders of all of the Bonds, waive, prior
to such a declaration, any past default under the Indenture with respect to the
Bonds and its consequences, except a default in the payment of interest on or
principal of any Bond.
For all purposes of this Bond and the Indenture, any amount payable by
the Company in respect of the Put Price of this or any other Bond (including any
such amount payable by the Company because Goldman, Sachs & Co. fails to pay the
Face Value of any Bond after its exercise of the
-17-
<PAGE>
Call Option as to this Bond) shall be deemed to be an amount payable by the
Company in respect of the principal of such Bond at its maturity, and any
default by the Company in paying such amount shall be deemed to be a default in
the payment of such principal at maturity. No failure by Goldman, Sachs & Co. to
purchase any Bond pursuant to the Call Option shall be deemed to be a default
under this Bond or the Indenture for any purpose.
(b) The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 66 2/3% in aggregate
principal amount of the Securities of all series to be affected (voting as one
class) at the time outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, the Indenture
with respect to each such series of Securities or modifying in any manner the
rights of the holders of each such series of Securities; provided, however, that
no such supplemental indenture shall (i) extend the stated maturity or reduce
the principal amount hereof, or reduce the rate or extend the time of payment of
interest hereon, or reduce or extend the time of payment of the Face Value or
the Put Price hereof, or impair or affect the right of any registered holder
hereof to institute suit for the payment hereof, without the consent of the
registered holder hereof, or (ii) reduce the aforesaid percentage of Securities
of any series or of all series (voting as one class), the consent of the holders
of which is required for any such supplemental indenture affecting this Bond,
without the consent of the registered holder hereof.
(c) As provided in and subject to the provisions of the Indenture, no
holder of this Bond shall have the right to institute any suit, action or
proceeding with respect to the Indenture, or for appointment of any receiver or
trustee or for any other remedy thereunder, unless such holder previously shall
have given the Trustee written notice of default and the continuance thereof,
the holders of not less than 25% in aggregate principal amount of the Bonds then
outstanding shall have made written request to the Trustee to institute such
suit, action or proceeding and shall have offered to the Trustee reasonable
indemnity and the Trustee, for 60 days after the receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute the same
and shall not have received
-18-
<PAGE>
any direction inconsistent therewith from the holders of a majority in aggregate
principal amount of all affected Securities then outstanding (which holders,
voting as a single class, shall be entitled to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee with
respect to the Bonds).
(d) No reference herein to the Indenture and no provision of this
Bond or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal or Put Price of and
interest on this Bond at the place, at the respective times, at the rate and in
the coin or currency herein prescribed.
(e) Any consent, waiver or other action by the registered holder of
this Bond provided pursuant to this Bond or the Indenture (unless effectively
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders of this Bond and of any Bond issued in
exchange or substitution herefor, irrespective of whether or not any notation of
such consent or waiver is made upon this Bond or such other Bond.
7. Form and Denomination; Global Securities. (a) The Bonds are
----------------------------------------
issuable as fully registered Bonds without coupons in the denominations of
$1,000 and any whole multiple of $1,000. At the corporate trust office of the
Trustee referred to on the face hereof, and in the manner and subject to the
limitations provided herein and in the Indenture, Bonds may be exchanged for a
like aggregate principal amount of Bonds of other authorized denominations,
without payment of any charge other than a sum sufficient to reimburse the
Company for any tax or other governmental charge incident thereto.
(b) The transfer of this Bond is registrable by the registered holder
hereof in person or by his attorney, duly authorized in writing, on the books of
the Company at the office or agency of the Company referred to on the face
hereof, subject to the terms of this Bond and the Indenture but without payment
of any charge other than a sum sufficient to reimburse the Company for any tax
or other governmental charge incident thereto, and upon surrender and
cancellation of this Bond upon any such transfer, a new Bond or Bonds of
authorized denomination or denominations, for the same aggregate principal
amount, shall be issued to the transferee in exchange herefor.
-19-
<PAGE>
(c) The Bond evidenced by this certificate has been issued in the
form of a Global Security and, for as long as this Bond shall be issued in such
form, the provisions of paragraphs (c)(i) through (c)(iv), inclusive, below
shall apply to this Bond.
(i) Notwithstanding any other provision of this Bond or the
Indenture, this Global Security may not be exchanged in whole or in part
for Bonds registered, and no transfer of this Global Security in whole or
in part may be registered, in the name of any person other than the
Depositary or a nominee thereof unless (A) the Depositary has notified the
Company that (1) it is unwilling or unable to continue as Depositary or (2)
has ceased to be a clearing agency registered under the Exchange Act or (B)
there shall have occurred and be continuing an Event of Default with
respect to the Bonds, or except as the Company may request in order to
facilitate the purchase of this Bond or any portion hereof by Goldman,
Sachs & Co. pursuant to the Call Option or by the Company pursuant to the
Put Option on any Reset Date (provided that, after consummation of any such
purchase pursuant to the Call Option, the Bond or portion so purchased may
be reissued in the form of a Global Security in accordance with the
Applicable Procedures).
(ii) Subject to paragraph (c)(i) above, any exchange of this Global
Security for other Bonds may be made in whole or in part, and all Bonds
issued in exchange for this Global Security or any portion hereof shall be
registered in such names and delivered to such persons as the Depositary
shall direct.
(iii) Every Bond authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, this Global Security or any
portion hereof shall be issued and authenticated in the form of, and shall
be, a Global Security, shall bear such legend as the Depositary may require
and shall be delivered to the Depositary or a nominee thereof or custodian
therefor, unless such Bond is registered in the name of a person other than
the Depositary or a nominee thereof.
(iv) As used herein, (A) "Global Security" means a Bond that
evidences all or any portion of the Bonds
-20-
<PAGE>
and is registered in the name of the Depositary (or its nominee), (B)
"Depositary" means a clearing agency registered under the Exchange Act and
designated by the Company to act as Depositary for the Bonds issued in
book-entry form, and (C) "Exchange Act" means the Securities Exchange Act
of 1934 (or any successor provision) as amended from time to time.
8. Holder. The Company, the Trustee and Goldman, Sachs & Co. (and
------
any agent of any such person) may treat the person in whose name this Bond shall
be registered as of the date of determination upon the books of the Company kept
for such purpose pursuant to the Indenture as the sole and absolute owner and
holder of this Bond (whether or not this Bond shall be overdue and
notwithstanding any notation of ownership or other writing hereon) for all
purposes, including the making of any payment in respect hereof, any exercise of
the Call Option or the Put Option and consummation of any sale and purchase
hereof pursuant thereto, the giving of any Call Notice, Hold Notice or other
notice with respect hereto, and the giving of any consent or taking of any other
action with respect hereto, and neither the Company nor the Trustee nor Goldman,
Sachs & Co. nor any such agent shall be affected by any notice to the contrary.
9. Notices. For as long as this Bond (or any portion hereof) is
-------
issued in the form of a Global Security, each Call Notice, 10% Requirement
Notice and other notice to be given to the holder of this Bond (or any such
portion) shall be deemed to have been duly given to such holder when given to
the Depositary, or its nominee, in accordance with its Applicable Procedures.
If at any time this Bond (or any portion hereof) is not issued in the
form of a Global Security, each Call Notice, 10% Requirement Notice and other
notice to be given to the holder of this Bond (or any such portion) shall be
deemed to have been duly given to such holder upon the mailing of such notice to
the registered holder at such holder's address as it appears on the books of the
Company maintained for such purpose pursuant to the Indenture as of the close of
business preceding the day such notice is given.
Neither the failure to give any notice nor any defect in any notice
given to the holder of this Bond or any
-21-
<PAGE>
other Bond shall affect the sufficiency of any notice given to another holder of
any Bonds.
With respect to this Bond, whether or not issued in the form of a
Global Security, Hold Notices may be given by the registered holder hereof to
the Trustee only by facsimile transmission or by mail and must actually be
received by the Trustee at the following address no later than 10:00 A.M., New
York City time, on the tenth Market Day prior to the applicable Reset Date:
The First National Bank of Chicago
One North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Office
facsimile no.: (312) 407-1708
Hold Notices may be given with respect to this Bond only by the registered
holder hereof.
10. No recourse shall be had for the payment of the principal of, or
the interest on, this Bond or of the Face Value upon any exercise of the Call
Option or of the Put Price upon any exercise of the Put Price, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation or entity, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
11. Provisions Relating to Goldman, Sachs & Co. Insofar as the
-------------------------------------------
provisions of this Bond purport to provide rights to Goldman, Sachs & Co.
against any holder of this Bond, such rights (including such rights to purchase
this Bond pursuant to the Call Option on any Reset Date) shall be rights of the
Company and shall be enforceable by the Company against such holder. Each
holder of this Bond shall hold this Bond (and by holding the same shall be
deemed to have agreed to do so) subject to the foregoing. Without limiting the
foregoing, Goldman, Sachs & Co. may take any action under this Bond (including
giving any notice, making any determination and effecting any settlement
pursuant to
-22-
<PAGE>
paragraphs 2, 4 and 5 hereof) that the provisions of this Bond contemplate may
be taken by Goldman, Sachs & Co.
Pursuant to section 6 of the Calculation Agency Agreement, dated as of
January 27, 1998, Goldman, Sachs & Co. has agreed with the Company, for the
benefit of the applicable holders of this Bond from time to time, that, if
Goldman, Sachs & Co. exercises the Call Option with respect to any Reset Date
when this Bond is outstanding, Goldman, Sachs & Co. will purchase this Bond from
the registered holder hereof on such Reset Date, upon the terms and subject to
the conditions set forth herein. Except as may be expressly provided in section
6 of such agreement, no holder of this Bond shall have any right, remedy or
claim against Goldman, Sachs & Co. under this Bond, the Indenture or such
agreement.
No provision of this Bond shall be invalid or unenforceable by reason
of any reference herein to Goldman, Sachs & Co. In addition, no provision of
this paragraph shall be construed to impair or otherwise affect any rights that
Goldman, Sachs & Co. may have at any time as a holder of any Securities.
12. Governing Law. As provided in the Indenture, this Bond shall for
-------------
all purposes be governed by and construed in accordance with the laws of the
State of New York.
-23-
<PAGE>
EXHIBIT 5.1
-----------
OPINION OF HUGHES & LUCE, L.L.P.
[HUGHES & LUCE, L.L.P. LETTERHEAD]
January 27, 1998
Securities and Exchange Commission
Judiciary Plaza
450 Fifth St., N.W.
Washington, D.C. 20549-1004
Ladies and Gentlemen:
We have acted as special counsel to Wal-Mart Stores, Inc., a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-3 (File No. 33-53125) (the "Registration Statement") as
filed with the Securities and Exchange Commission (the "Commission") on April
13, 1994 under the Securities Act of 1933, as amended (the "Act"), with respect
to the issuance of an aggregate principal amount of $500,000,000 of Remarketed
Put Bonds due February 1, 2010 of the Company (the "Bonds") offered pursuant to
that certain Prospectus Supplement (the "Prospectus Supplement") dated January
22, 1998 and filed with the Commission on January 26, 1998 pursuant to Rule
424(b)(2) of the Act, which Prospectus Supplement is part of the combined
Prospectus dated April 22, 1994.
In rendering this opinion, we have examined and relied upon executed
originals, counterparts, or copies of such documents, records, and certificates
(including certificates of public officials and officers of the Company) as we
considered necessary or appropriate for enabling us to express the opinions set
forth below. In all such examinations, we have assumed the authenticity and
completeness of all documents submitted to us as originals and the conformity to
originals and completeness of all documents submitted to us as photostatic,
conformed, notarized, or certified copies.
Based on the foregoing, we are of the opinion that the Bonds have been
duly authorized and are legally issued and constitute the valid and legally
binding obligations of the Company.
We are members of the State Bar of Texas and accordingly do not
express or purport to express any opinions with respect to laws other than the
laws of the State of Texas, the General Corporation Law of the State of Delaware
and the federal laws of the United States of America. With respect to matters
of the laws of the State of New York as it effects our opinion expressed herein,
we have assumed that the laws of the State of New York are identical to the laws
of the State of Texas.
<PAGE>
January 27, 1998
Page 2
This opinion may be filed as an exhibit to the Registration Statement.
We also consent to the reference to this firm as having passed on the validity
of the Bonds under the caption "Validity of the Bonds" in the Prospectus
Supplement, which is a part of the Registration Statement. In giving this
consent, we do not admit that we are included in the category of persons whose
consent is required under Section 7 of the Act, or the rules and regulations of
the Commission promulgated thereunder.
Very truly yours,
/s/ Hughes & Luce, L.L.P.
<PAGE>
Exhibit 10.1
EXECUTION COPY
CALCULATION AGENCY AGREEMENT
BETWEEN
WAL-MART STORES, INC.
AND
GOLDMAN, SACHS & CO.
January 27, 1998
Wal-Mart Stores, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $500,000,000 aggregate principal amount of its
Remarketed Put Bonds due February 1, 2010 (the "Bonds") in accordance with the
terms of the Indenture, dated as of April 1, 1991, as amended by the First
Supplemental Indenture, dated as of September 9, 1992 (together, the
"Indenture"), in each case between the Company and The First National Bank of
Chicago, as trustee (the "Trustee"). Terms used but not defined herein shall
have the meanings assigned to them in the Bonds.
For the purpose of appointing an agent to perform the functions of
Calculation Agent as described in the Bonds, and for other reasons related
thereto, the Company and Goldman, Sachs & Co. hereby agree as follows (it being
understood that the references to Goldman, Sachs & Co. in subsection 1 through 4
below mean such firm in its capacity as Calculation Agent, in sections 5 and 6
below mean such firm in its individual capacity and not as Calculation Agent,
and in sections 7 through 12 below mean such firm in either capacity, as the
context may require):
1. Upon the terms and subject to the conditions contained herein,
the Company hereby appoints Goldman, Sachs & Co. as agent (solely in such
capacity, the "Calculation Agent") for the purpose of performing the functions
of Calculation Agent as described in the Bonds.
2. (a) Subject to sections 3 and 4 below, the Calculation Agent
agrees to perform the functions of the Calculation Agent described in the Bonds.
The Calculation Agent shall require each financial institution that is to act as
a Reference Dealer to execute a Reference Dealer agreement substantially in the
form attached hereto as Annex A, with such changes as Goldman, Sachs & Co., in
its individual capacity, reasonably may request with the approval of the
Company.
<PAGE>
(b) Upon the request of a registered holder of Bonds, the Trustee or
the Company, the Calculation Agent shall inform such holder, the Trustee or the
Company of the results of any calculation or determination.
3. The Calculation Agent accepts and agrees to perform its
obligations set forth herein, upon the terms and subject to the conditions
hereof, including the following, to all of which the Company and the Trustee
agree:
(a) The Company promises to reimburse the Calculation Agent for the
reasonable out-of-pocket expenses (including counsel fees and expenses)
incurred by it in connection with the services rendered hereunder by it as
Calculation Agent upon receipt of such invoices as the Company shall
reasonably require. The Company also agrees to indemnify the Calculation
Agent for, and to hold it harmless against, any and all loss, liability,
damage, claims or expense (including the costs and expenses, including
reasonable legal fees and expenses, of defending against any claim of
liability) incurred by the Calculation Agent that arises out of or in
connection with its acting as Calculation Agent hereunder, except such as
may result from the gross negligence, willful misconduct or bad faith of
the Calculation Agent. The Calculation Agent shall incur no liability and
shall be indemnified and held harmless by the Company for, or in respect
of, any actions taken, omitted to be taken or suffered to be taken in good
faith by the Calculation Agent in reasonable reliance upon (i) the written
opinion of counsel satisfactory to it or (ii) instructions from the Trustee
or the Company. The Calculation Agent shall not be liable for any error
resulting from the use of or reasonable reliance on a source of information
used in good faith and with due care to make any determination, calculation
or declaration hereunder. In no event shall the Calculation Agent be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the
Calculation Agent has been advised of the likelihood of such loss or damage
and regardless of the form of action. The provisions of this paragraph
shall survive the termination of this Agreement.
-2-
<PAGE>
(b) In acting under this Agreement and in connection with the Bonds,
the Calculation Agent is acting solely as agent of the Company and does not
assume any obligations to, or relationship of agency or trust for or with,
any of the owners or holders of the Bonds.
(c) Notwithstanding any other provision to the contrary set forth in
this Agreement, the Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken or
anything suffered by it in reliance upon the terms of the Bonds or any
notice, direction, certificate, affidavit, statement or other paper,
document or communication reasonably believed by it to be genuine and to
have been approved or signed by the proper party or parties.
(d) The Calculation Agent shall be obligated to perform such duties
and only such duties as are specifically set forth for the Calculation
Agent herein or in the Bonds, and no implied duties or obligations shall be
read into this Agreement against the Calculation Agent.
(e) The Calculation Agent may, upon obtaining the prior written
consent of the Company, perform any duties hereunder through agents or
attorneys, and the Calculation Agent shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(f) The Company will not, without first obtaining the prior written
consent of the Calculation Agent, make any change to the terms of the Bonds
if such change would materially and adversely affect the Calculation
Agent's rights, duties and obligations under this Agreement.
(g) The Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken in
good faith or anything suffered in good faith by it in reliance upon
anything contained in the Bonds, the Indenture, the Prospectus Supplement
dated January 22, 1998 or the Prospectus dated October 14, 1994 relating to
the Bonds (together, the "Prospectus") or any information
-3-
<PAGE>
supplied to the Calculation Agent by the Company pursuant to this
Agreement.
(h) The Calculation Agent, whether acting for itself or in any other
capacity, its partners, officers, directors, employees and shareholders or
any affiliate of the Calculation Agent may become the owner, holder or
pledgee of Bonds (or the owner, holder, pledgee or obligor with respect to
any option, swap or other contract related thereto) with the same rights as
it would have had if it were not acting hereunder as Calculation Agent and
may engage or be interested in any financial or other transaction with the
Company as fully as if it were not the Calculation Agent.
(i) The Calculation Agent shall promptly provide to the Trustee a
written report of all determinations and calculations required to be made
by the Calculation Agent pursuant to the terms of this Agreement and the
Bonds. The Trustee may conclusively rely on all of the information
provided to it pursuant to the preceding sentence without further
investigation on its behalf.
Any determination or calculation made by the Calculation Agent in
accordance with the terms of this Agreement and the Bonds shall be final and
binding on the Company, the Trustee and the Holders and owners of the Bonds,
absent manifest error.
4. (a) The Calculation Agent may at any time resign as Calculation
Agent by giving written notice to the Company (with a copy to the Trustee) of
such intention on its part, specifying the date on which its desired resignation
shall become effective; provided, however, that such date shall not be earlier
-------- -------
than 30 days after the receipt of such notice by the Company, unless the Company
agrees in writing to accept less notice. The Company may remove the Calculation
Agent at any time, but only for cause, by filing with the Calculation Agent
(with a copy to the Trustee) any instrument in writing signed on behalf of the
Company and specifying such removal, the reasons for such removal and the date
when such removal is intended to become effective. Such resignation or removal
shall take effect upon the date of the appointment by the Company, as
hereinafter provided, of a successor Calculation Agent. If at least 30 days
prior to the next succeeding Calculation
-4-
<PAGE>
Date after notice of resignation or removal has been given, a successor
Calculation Agent has not been appointed, the Calculation Agent may petition a
court of competent jurisdiction to appoint a successor Calculation Agent. A
successor Calculation Agent shall be appointed by the Company by an instrument
in writing signed on behalf of the Company and the successor Calculation Agent.
Upon the appointment of a successor Calculation Agent and acceptance by it of
such appointment, the Calculation Agent so superseded shall cease to be such
Calculation Agent hereunder. Upon its resignation or removal, the Calculation
Agent shall be entitled to the reimbursement of all reasonable out-of-pocket
expenses incurred in connection with the services rendered hereunder by it as
Calculation Agent.
(b) Any successor Calculation Agent appointed hereunder shall execute
and deliver to its predecessor, the Company and the Trustee an instrument
accepting such appointment hereunder and agreeing to perform the functions of
the Calculation Agent under the Bonds and the obligations of the Calculation
Agent under this Agreement and to be bound by this Agreement, and thereupon such
successor Calculation Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally named as
such Calculation Agent hereunder, and such predecessor Calculation Agent, upon
payment of its charges and disbursements then unpaid, shall thereupon become
obliged to transfer and deliver, and such successor Calculation Agent shall be
entitled to receive and the predecessor Calculation Agent shall provide, copies
of any relevant records maintained by such predecessor Calculation Agent.
(c) Any corporation, partnership, limited liability company or other
entity into which the Calculation Agent may be merged or converted or with which
the Calculation Agent may be consolidated, or any corporation, partnership,
limited liability company or other entity resulting from any merger, conversion
or consolidation to which the Calculation Agent shall be a party, shall, to the
extent permitted by applicable law, be the successor Calculation Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto provided that such successor
--------
Calculation Agent shall assume, or be deemed to have
-5-
<PAGE>
assumed, all of the obligations and liabilities of its predecessor under this
Agreement. Notice of any such merger, conversion, consolidation or sale shall
forthwith be given to the Company and the Trustee.
(d) The foregoing indemnity, reimbursement and other provisions of
this Agreement will survive any resignation or removal of the Calculation Agent.
The agreements of the parties set forth above will be binding upon and inure to
the benefit of their respective successors.
5. For good and valuable consideration, the sufficiency of which is
hereby acknowledged, the Company hereby agrees with Goldman, Sachs & Co., in its
individual capacity and not as Calculation Agent, as follows:
(a) If at any time Goldman, Sachs & Co., with the advice of its
counsel and after consultation with the Company and its counsel, determines that
registration of the Bonds under the Securities Act of 1933 (or any successor
law), as it may be amended from time to time, is required in order for Goldman,
Sachs & Co. to resell the Bonds on any Reset Date as contemplated in the
Prospectus, the Company will, at its own expense, cause the Bonds to be so
registered in time to permit such resale of the Bonds on the relevant Reset
Date; provided, however, that Goldman, Sachs & Co. shall give the Company at
-------- -------
least 30 days' notice prior to such Reset Date.
(b) Notwithstanding any provision to the contrary set forth in the
Indenture, the Company will not purchase any Bonds in the open market, by tender
offer, in a private transaction or otherwise, except pursuant to any purchase
obligation it may have under the Bonds or with the prior written consent of
Goldman, Sachs & Co., as holder of the Call Option; provided, however, that with
-------- -------
respect to any Reset Date, if Goldman, Sachs & Co. does not exercise the Call
Option and Effective Hold Notices are given by the holders of the Bonds, this
provision shall not restrict the ability of the Company to purchase Bonds for 90
days following such Reset Date.
(c) Notwithstanding any provision to the contrary set forth in the
Indenture, the Company will not cause or permit the provisions of any Bond (or
the Indenture, as it relates to any Bond) to be modified in any way without the
-6-
<PAGE>
prior written consent of Goldman, Sachs & Co. (including with respect to the
payment and settlement provisions of paragraph 5 of the Bonds).
(d) The Bonds and the Indenture, insofar as they relate to the Call
Option or may affect the interests of Goldman, Sachs & Co. as holder of such
option (including the provisions relating to the interest rate reset and resale
to a Final Dealer, but excluding the provisions referred to in the next
sentence), constitute obligations of the Company that are made for the benefit
of, and are enforceable by, Goldman, Sachs & Co., in its individual capacity and
not as Calculation Agent. In addition, insofar as the provisions of any Bond
purport to provide rights to Goldman, Sachs & Co. against any holder of such
Bond (including the right to purchase such Bond from any holder on any Reset
Date pursuant to the Call Option), the Company shall take all action necessary
or desirable to enforce such rights in its own name, but for the benefit of
Goldman, Sachs & Co. so as to ensure that Goldman, Sachs & Co. receives the full
benefit of such rights as if they were enforceable directly by Goldman, Sachs &
Co., in each case if, to the extent and in the manner, but only if, to the
extent and in the manner, requested by Goldman, Sachs & Co. Among other things,
if requested by Goldman, Sachs & Co., such action by the Company shall include
effecting transfers of Bonds or beneficial interests therein as contemplated in
paragraph 5 of the reverse of the Bonds, exchanging Bonds in book-entry form for
Bonds that are not in such form and vice-versa as contemplated in paragraph 8(c)
of the reverse of the Bonds and instituting suit to enforce specific performance
of such rights or to obtain money damages or other relief in respect of such
rights, whether against the holders or their respective successors, assigns,
estates, heirs or representatives. Without limiting the foregoing, Goldman,
Sachs & Co. may take any action under the Bonds (including giving any notice,
making any determination and effecting any settlement pursuant to paragraphs 2,
4 and 5 thereof) that the provisions of the Bonds contemplate may be taken by
Goldman, Sachs & Co., and the Company will not take any action unless Goldman,
Sachs & Co. requests it to do so. Goldman, Sachs & Co. shall reimburse the
Company for any reasonable, out-of-pocket expenses the Company incurs, including
reasonable counsel fees and expenses, in connection with any action it may take
in this regard at the request of Goldman, Sachs & Co. The Company's agreements
set forth in this paragraph shall not be invalid or
-7-
<PAGE>
unenforceable by reason of any provision of the Bonds not being unenforceable by
Goldman, Sachs & Co. This paragraph is not intended to limit any rights that
Goldman, Sachs & Co. may have under the Indenture or the Bonds as a holder or
owner of Securities from time to time.
(e) Notwithstanding any provision to the contrary set forth in the
Bonds or the Indenture (but subject to section 5(d) above), the Company (i) will
use its best efforts to maintain the Bonds in book-entry form with The
Depository Trust Company ("DTC") or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Bonds in book-entry
form and (ii) will waive any discretionary right it otherwise has under the
Indenture to cause the Bonds to be issued in certificated form. The Company
will perform its obligations, and pursue its rights against DTC, under the DTC
Letter of Representations dated January 27, 1998 among the Company, the Trustee
and DTC.
(f) If Goldman, Sachs & Co. resigns or is removed as Calculation
Agent, the Company will take such steps as are necessary to ensure that there is
at all times thereafter a qualified financial institution appointed and serving
as Calculation Agent pursuant to an agreement with the Company that is
substantially similar to this Agreement (excluding this section 5) or that is
not materially adverse to the interests of Goldman, Sachs & Co. as holder of the
Call Option. The Company will promptly provide Goldman, Sachs & Co. with a copy
of each such agreement.
The agreements made in this section 5 will remain in effect regardless of
whether or not Goldman, Sachs & Co. ceases to act as Calculation Agent or to
perform its duties as Calculation Agent hereunder, and regardless of any change
in the Trustee. The agreements of the Company in this section 5 are not
contingent in any way upon the agreements of the parties set forth in the other
sections of this Agreement, will be binding upon the Company and its successors
and will inure to the benefit of Goldman, Sachs & Co. and its successors.
6. Goldman, Sachs & Co., in its individual capacity and not as
Calculation Agent, hereby agrees with the Company and the Trustee, for the
benefit of the Company and the applicable holders of the Bonds from time to
time, that, if Goldman, Sachs & Co. exercises the Call Option with
-8-
<PAGE>
respect to any Reset Date when the Bonds are outstanding, it will purchase the
outstanding Bonds from the registered holders thereof on such Reset Date upon
the terms and subject to the conditions (including the absence of a Market
Disruption Event or Failed Remarketing) set forth in such Bonds, all as provided
in such Bonds. If Goldman, Sachs & Co. exercises the Call Option and becomes
obligated under this Agreement to purchase outstanding Bonds on any Reset Date
but fails to do so, and the Company becomes obligated to purchase such Bonds on
the Reset Date as provided in the Bonds, such purchase by the Company will not
relieve Goldman, Sachs & Co. from any liability it may have on its obligation
under this Agreement to purchase such Bonds. The holders of the Bonds shall have
no right, claim or remedy under this Agreement except as provided in this
section 6.
7. Any notice required to be given hereunder shall be delivered in
person, sent by overnight courier, registered mail, return receipt requested, or
facsimile or communicated by telephone (subject, in the case of communication by
telephone, to confirmation dispatched within twenty-four hours by letter or by
facsimile),
in the case of the Company, to:
Wal-Mart Stores, Inc.
702 S.W. Eighth Street
Bentonville, Arkansas, 72716
Attention: Treasurer
Facsimile: 501-273-1969;
in the case of the Calculation Agent, to:
Goldman, Sachs & Co.
85 Broad Street
New York, N.Y. 10004
Attention: Registration Department
Facsimile: (212) 902-3000;
in the case of Goldman, Sachs & Co. (in its individual capacity, and not as
Calculation Agent), to:
Goldman, Sachs & Co.
85 Broad Street
New York, N.Y. 10004
Attention: Registration Department
Facsimile: (212) 902-3000;
and in the case of the Trustee, to:
The First National Bank of Chicago,
-9-
<PAGE>
One North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Facsimile: (312) 407-1708;
or to any other address of which any party shall have notified the others in
writing as herein provided. Any notice hereunder given by facsimile or letter,
first class mail, shall be deemed to be received upon actual receipt thereof.
8. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
9. The rights and obligations of the Company hereunder may not be
assigned or delegated to any other person without the prior written consent of
Goldman, Sachs & Co. The rights and obligations of Goldman, Sachs & Co.
hereunder may not be assigned or delegated to any other person without the prior
written consent of the Company. This Agreement shall inure to the benefit of and
be binding upon the Company and Goldman, Sachs & Co. and their respective
successors and assigns, and will not confer any benefit upon any other person
(other than as provided in section 6 above). The terms "successors" and
"assigns" shall not include any purchaser of Bonds merely because of such
purchase.
10. If any provision of this Agreement shall be held invalid or
unenforceable as applied in any particular case in any or all jurisdictions,
such circumstances shall not have the effect of rendering the provision invalid
or unenforceable in any other case or jurisdiction, or of rendering any other
provision of this Agreement invalid or unenforceable.
11. This Agreement may be amended by any instrument in writing signed
by each of the parties hereto.
-10-
<PAGE>
12. This Agreement may be executed by each of the parties hereto in
any number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all such counterparts shall
together constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
WAL-MART STORES, INC.
By: ______________________________
Name:
Title:
_________________________________
(Goldman, Sachs & Co.)
in its individual capacity and
as Calculation Agent
-11-
<PAGE>
ANNEX A
FORM OF
REFERENCE DEALER AGREEMENT
__________, 200__
_____________________
_____________________
_____________________
_____________________
Dear Sirs:
Wal-Mart Stores, Inc., a Delaware corporation (the "Company"), has
issued $500,000,000 in outstanding principal amount of its Remarketed Put Bonds
due February 1, 2010 (the "Bonds") pursuant to an Indenture, dated as of April
1, 1991, as amended by a First Supplemental Indenture, dated as of September 9,
1992 (together, the "Indenture"), in each case between the Company and The First
National Bank of Chicago, as trustee (the "Trustee"). The Bonds provide for the
periodic reset of the rate at which interest will accrue thereon and for their
periodic resale. Pursuant to a Calculation Agency Agreement, dated January 29,
1998, between the Company and Goldman, Sachs & Co. (the "Calculation Agency
Agreement"), we have been appointed as the calculation agent (the "Calculation
Agent") for purposes of determining the new interest rate for the Bonds on each
Reset Date. As Calculation Agent, we would like to extend to you an invitation
to participate in the interest reset and resale process as a Reference Dealer,
as described more fully in the Bonds.
<PAGE>
Capitalized terms used in this Agreement and not defined herein will
have the meanings ascribed to them in the Bonds.
The Calculation Date to which this agreement relates is
_______________, and the Reset Date is _______________.
Please note that by executing this agreement, you agree that, if you
are selected as the Final Dealer, you will purchase from Goldman, Sachs & Co. on
the Calculation Date for settlement on the Reset Date and at the Final Offer
Price all the Bonds that Goldman, Sachs & Co. may purchase pursuant to the Call
Option and tender for sale to you on the Reset Date. We will inform you whether
you have been selected as the Final Dealer on or shortly after the Calculation
Date. If you are selected as the Final Dealer, (i) the aggregate principal
amount of Bonds which you may be required to purchase will not exceed
$_______________ (we will inform you of the actual amount on the Reset Date),
(ii) the price for such Bonds will be the Final Offer Price, which we will
provide to you when requesting your bid on the Calculation Date, and (iii) the
Adjusted Rate for the Bonds for the Reset Period beginning on such Reset Date
will be calculated by us based on the bid submitted (and confirmed in writing)
by you on the Calculation Date.
Notwithstanding anything to the contrary set forth in this Agreement,
you will have no obligation or right to purchase any Bonds on any Reset Date if
you are not selected as the Final Dealer or if Goldman, Sachs & Co. does not
purchase such Bonds on the Reset Date. Neither the Calculation Agent nor the
Company has any obligation hereunder to sell any Bonds to you.
If you are willing to participate as a Reference Dealer under the
terms described above, please fill in the information requested below and have
an appropriate person sign and return this agreement to us by
____________________. Upon acceptance hereof by you, this letter shall
constitute a binding agreement between you and us, and for the benefit of the
Company and Goldman, Sachs & Co. (in its individual capacity and not as
Calculation Agent).
-2-
<PAGE>
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
________________________,
as Calculation Agent
By: __________________________
Name:
Title:
Accepted as of the date hereof:
_______________________________
By: ___________________________
Name:
Title:
Contact: ______________________
Phone No.: ____________________
Facsimile No.: ________________
-3-
